Page - 170 - in Loss and Damage from Climate Change - Concepts, Methods and Policy Options

170 E.Calliari et al. motifs of theUSdelegation atCOP21was that any reference to legal remedies in the Paris Agreement would have encountered the opposition of the Congress and hadtheeffect“tokill thedeal”.TheUSratificationconstraint (Putnam1988)forced AOSIS to put aside their responsibility claims and go for a compromise solution. Talksbetween theUSandsmall island states, labelleda“meetingof theminds”by SecretaryKerry (Friedman2015),were held at the onset of the secondnegotiation week,with Saint Luciaminister Fletcher describing their objective as “ensur[ing] that everybodywas comfortablewith the agreement” (CarbonBrief 2015).Yet, the compromisesolution(paragraph52of theaccompanyingdecisionto theAgreement excluding basis for any liability or compensation claims) did notmake everybody comfortable. The Philippines expressed deep concern and Bolivia stated that “no clause candenypeople andcountries’ rights to ask for compensation”and that “all thenecessary institutionalmeanswillbeusedso that [climate] justicecanbemade” (Bolivia2015). Asmade evident by this discussion, a liberalist viewofL&Dnegotiations does notreallyhelptoexplain thestructuralist-paradox. Infact, it reinforces it.This is the result of considering, as in realism, negotiation outcomes a function of the (static) characteristics—beingParties’ features or capabilities—of aparticular negotiation. In otherwords, for liberals andneorealists it ismaterial power (military hardware, strategic resources, andmoney) that ultimatelymatters (Hurd 2008). On the con- trary,constructivistsargue thatbothmaterialanddiscursivepowerarenecessaryfor understandingworldpolitics(Hopf1998).Wethereforeturnourattentiontothecon- structivistapproachandtherolethatethicalandlegaldiscourseshavehadinshaping L&Dnegotiations. 6.4.3 Constructivism Along theconstructivism line,L&Dnegotiationswouldhavebeen shapednotonly bymaterial poweror state interest but alsobyacompetitionbetween states around different understandings and framings (i.e. discourses) ofL&D.Developing coun- tries have largely framedL&D in ethical and legal terms andmade a case for this conceptualisation since the beginning of climate talks. They have pointed to the unfairnessofclimatechange (affectingfirst those least responsible for theproblem) and to the threats for survival it poses for themost exposed societies.Byanalysing developingcountries’submissionstotheSBIandADP(2011–2015)andHighLevel Segment statements fromCOP16 toCOP21 (seeCalliari (2016a) for thematerial employed), it is possible tofind references to theconceptsof fairness, international solidarity; equity and intergenerational equity. The legal counterpart of these ethi- cal arguments is the concept of state responsibility–compensation (seeChap. 7 on legal issues: Simlinger andMayer 2018),which seeks reparation forwrongful acts attributable to states. In termsof citation frequency, this is themost-citedprinciple in the (wide) sample of submissionswe analysed, and it is often accompanied by thePolluterPaysPrinciple;Commonbutdifferentiatedresponsibilityandrespective